REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHE
(3) REVISED: NO
I\ "''1 ~Olb
DATE
In the matter between:
PETER HANSEN LYONS
SHARON DESIREE MARY LYONS
and
ATLAS ORGANIC FERTILISERS (PTY) LTD
JUDGMENT
DJ Smit, AJ
Introduction ·
(1) This is an opposed exception.
Case Number: 2024-117197
First Plaintiff / Respondent
Second Plaintiff/ Respondent
Defendant I Excipient
[2] The excipient, Atlas Organic Fertilisers (Pty) Ltd (At/as) alleges that the
particulars of claim of Mr Peter Lyons and Ms Sharon Lyons is vague and
embarrassing.
[3] Although there are four grounds of exception, in substance they amount to two:
a. First, in respect of loan agreements said to exist between each of Mr and
Ms Lyons, on the one hand, and Atlas, on the other, written loan
agreements were not attached to the particulars of claim.
b. Second, the way in which the amounts outstanding in respect of the loans
is pleaded does not clarify how the outstanding amounts were calculated.
[4] For the reasons below, I conclude that the exceptions should be dismissed.
Background
[5] Mr and Ms Lyons instituted action against Atlas on or about 14 October 2024.
Their particulars of claim is based on separate loan agreements: one allegedly1
concluded in 2004 (between Mr Lyons and Atlas) and the other concluded in
2011 (between Ms Lyons and Atlas).
[6] The two claims follow the same pattern:
a. Each of Mr and Ms Lyons advanced a capital amount to Atlas in terms of a
loan agreement.
b. The "salient terms" of each agreement are said to be that the loans were
unsecured; bore interest at prime plus R1 .5%; interest was compounded
monthly in advance; and there was no fixed repayment date, as a result of
which the loans could be called up on reasonable notice.
c. Up to 31 December 2021, there were further advances and repayments, so
that the outstanding amount in respect of Mr Lyons was R10,667,758 at
1 It is trite that, for purposes of exception, the facts alleged in the particulars of claim must be
assumed to be true. Thus, I will record the facts set out in the particulars of claim without, in every
instance, clarifying that these are mere allegations at this stage; they are not find ings of fact.
that date and the outstanding amount in respect of Ms Lyons was
R354,219.
d. Each of these amounts (and certain of their terms) was confirmed in the
audited annual financial statements (AFS) of Atlas for the 2021 financial
year; albeit that Atlas recorded in a note to the financial statements that
there was a dispute regarding a change to the interest rate; the basis on
which interest was compounded; the absence of security; and certain of the
repayments and advances between 2009-2020.
e. Despite the disputes, the plaintiffs rely on the balances of the loans
disclosed in the 2021 AFS of Atlas.
f. Further interest accrued after 31 December 2021 and further repayments
were made on the loans up to 31 May 2023, so that the balance owing in
respect of Mr Lyons was R6,009, 106.99 at that date, and the balance owing
to Ms Lyons was R201,448.78.
g. On 31 January 2024, Atlas paid Mr Lyons R3,848,901.50 and Ms Lyons
R43,041.39, purportedly in full and final settlement of its debt.
h. The plaintiffs rejected the offer to compromise "as a result of which the
amounts outstanding on the aforesaid loans remained unaffected by the
payments".
i. Thus, at 31 August 2024, Atlas was indebted to Mr Lyons in an amount of
R2,093,924.65 and to Ms Lyons in an amount of R247,234.10. Atlas owes
these amounts plus interest at the contractual rates.
[7] On 29 November 2024, Atlas excepted to the particulars of claim saying that the
plaintiffs did not attach copies of the written loan agreement; and that the required
particulars in respect of the calculation of the interest and the balances owing on
specific dates were not furnished. In particular, the plaintiffs did not plead whether
the amounts paid "in full and final settlemenf' were taken into account in
calculating the balances said to be owed at 31 August 2024.
The exceptions regarding the written agreement
[8] Particulars of claim are excipiable as being vague and embarrassing only if the
ground of objection goes to the root of the cause of action.2
[9] In this case, the objection that the plaintiffs did not annex a copy of a written
agreement or agreements does not go to the root of their cause of action. This is
so for the following reasons:
a. First, the particulars of claim does not squarely rely on a written agreement
or agreements. In each case, it is pleaded that the relevant plaintiff
advanced funds "in terms of a written, alternatively oral, further alternatively
tacit agreemenf'. If the plaintiffs were to prove oral agreements, they would
have a cause of action based upon a loan agreement. Thus, the fact that
the agreement is alleged, in the alternative, to be written, does not go to the
root of the cause of action.
b. Second, the terms on which the plaintiffs rely are clearly set out and are in
general consistent with what Atlas itself disclosed in its AFS. Atlas is
therefore not embarrassed in pleading to these terms. If it wishes to adduce
different terms, it may do so but must be prepared to prove the allegations.
c. Third, I agree with the judgment in ZalvesfJ that
i. a party to a written contract is not precluded from enforcing it merely
because the contract has been destroyed or lost;
ii. it is a necessary implication of Rule 18(6) that a copy of a written
contract need not be attached to particulars of claim if it is impossible
for the pleader to do so, though to avoid an objection to the particulars
of claim (on the basis of Rule 18(6)), the pleader should explain the
inability;
2 Jowell v Bramwell✓ones 1998 (1) SA 836 (W) at 902F-G.
3 Absa Bank Ltd v Zalvest Twenty (Ply) Ltd 2014 (2) SA 119 (WCC) paras 9; 13, 20-21 and 23.
See also Nedbank Ltd v Yacoob 2022 (2) SA 230 (GJ) paras 22-23 and 25.
iii. it is not necessary to pray for condonation of the failure to annex the
written agreement in terms of Rule 27(3), because a rule of court that
allowed a possibility of not condoning the failure to produce a written
contract that was destroyed or lost, would arguably be ultra vires;
iv. if it is impossible for a plaintiff to produce the written contract or a copy
thereof, the law allows him to prove the execution and terms of the
written contract by other evidence;
v. if a plaintiff pleads the conclusion of a written contract and the terms
relevant to his cause of action, the cause of action appears ex facie
the particulars of claim; and
i. non-compliance with Rule 18(6) is unrelated to the question whether
there is or is not a cause of action.
[1 O] Thus, in my view, the particulars of claim in this case sets out a non-defective
cause of action. It may or may not have been objectionable in terms of
Rule 18(6), but that objection was not taken. Particulars of claim are not vague
and embarrassing merely because it alleges a written agreement without
annexing it. While it is desirable to explain the circumstances in which a wrmen
agreement is not annexed, where a plaintiff squarely relies on a written
agreement, the failure to do so does not cause embarrassment leading to
prejudice in circumstances where the plaintiff has set out the terms of the
agreement on which he or she relies.
[11] My conclusion that the exceptions in this regard should be dismissed is
reinforced by the AFS and the attorneys' correspondence annexed to the
particulars of claim which tell their own story: there is no dispute between the
parties regarding the existence of loan agreements and the balances up to
31 December 2021. There are relatively narrow disputes regarding the terms of
the loan agreements which may have been caused by the fact that the written
agreements were lost or that they were not written in the first place. Atlas is
eminently capable of pleading to these allegations.
The exceptions regarding calculation
[12) The third and fourth exceptions are difficult to follow. They each seem to be two
fold:
a. The plaintiffs did not set out in sufficient detail what amounts were added
to and deducted from the (agreed) amounts owing as at 31 December 2021,
including in regard to the calculation of interest, to arrive at the balances
pleaded as at 31 May 2023.
b. The plaintiffs did not plead, in regard to the balances at 31 August 2024
(which forms the basis of their claims) whether they were arrived at by
crediting the payments made by Atlas on 31 January 2024 in full and final
settlement.
[13] In regard to the first leg of the objection, a pleader is obliged to plead no more
and no less than the material facts on which he or she relies. His or her opin ion
or conclusion does not· substitute for a cause of action when the material facts
underlying it have not been pleaded.4
[14] Matters of calculation are not matters of opinion or conclusion. They are either
right or wrong; and the facts furnishing the basis of calculation are either right or
wrong.
(15] In this case, it seems that Atlas would have expected a schedule to be attached
to the particulars of claim showing both the compounding of interest from time to
time as well as all payments or further advances made. This may have been
desirable, but I do not think it is required by the principles of pleading.
[16] In my view, pleading the basis for the compounding of interest (and the rate) as
well as the balances from time to time - which the plaintiffs have done - sets out
the plaintiffs' claims with sufficient particularity. The underlying facts and the
calculation are either right or wrong; and Atlas is perfectly capable of pleading
4 Buchnerv Johannesburg Consolidated Investment Co Ltd 1995 (1) SA 215 (T) at 216H-J .
thereto with its own version of amounts outstanding from time to time, interest
and payments, without embarrassment.
[17] The same goes for the second leg of the objection. The pleading clearly alleges
that the plaintiffs' rejection of the offer to compromise meant that "the amounts
outstanding on the aforesaid loans remained unaffected by the payments". The
fact that it appears on the face of the particulars of claim that these amounts
were, in fact, deducted from the balances outstanding at 31 May 2023 to arrive
at the amounts claimed is neither here nor there. Either the plaintiffs calculated
the final amounts correctly without reference to the compromise payments or
they did not. This is a matter that can easily be pleaded to and causes no
embarrassment going to the root of the plaintiffs' cause of action.
[18] Thus, the exceptions should be dismissed. Costs should follow the event: In my
view, costs on Scale Bare appropriate.
Order
[19] I make the following order:
a. The exceptions are dismissed.
b. The defendant must pay the plaintiffs' costs, includin
on Scale B.
Date of hearing: 5 March 2026
Date of judgment: 18 May 2026
DJ SMIT
JOHANNESBURG
For the Excipient:
For the Respondents:
H Papenfus (attorney) instructed by
Gerrit Coetzee Attorneys
GF Porteous instructed by Roy Stoler
Attorneys